The Defendant applied to dismiss the Action under Rule 4.33 on the basis that three years had elapsed without a significant advance. The Plaintiff contended that three steps occurred during the three year period in question, each of which significantly advanced the Action: 1) the provision of additional documents in response to a request for same by the Defendant; 2) the Plaintiff had abandoned several damages claims; and 3) the parties had entered into a Consent Order for a case conference. The Application was originally heard by a Master who found that all three steps constituted significant advancements of the Action. The Defendant appealed. Justice Antonio noted that the standard of review on appeal from a Master to a Justice is correctness on all issues.

Justice Antonio held that Rule 4.33 must be interpreted in accordance with Rule 1.2, which “places a particular emphasis on the use of [the Rules] to conclude inactive civil litigation matters”. Justice Antonio noted that, it is the Plaintiff that bears the ultimate responsibility for prosecuting its claim, and the Defendant, while not being able to purposively obstruct, stall, or delay, is never required to actively move an Action along. Justice Antonio confirmed that the test is a functional one for determining whether a significant advance in the Action had been made, which considers whether the Action has been moved closer to resolution in a meaningful way, considering the nature, quality, genuineness, timing and outcome.

Regarding the provision of documents requested by the Defendants, Justice Antonio found that the records which were provided were generally non-responsive to the requests which had been made, and constituted “peripheral information…[which] framed an uninterrupted absence of information touching the matters at the core of the claim”. Assessed from a functional perspective, Justice Antonio held that the provision of documents did not significantly advance the Action.

Regarding the abandonment of claims, Justice Antonio noted that the abandonment occurred only after counsel for the Defendant requested evidence which could support them. Justice Antonio noted that, evidence of those claims ought to have been provided in the initial Affidavit of Records and Justice Antonio inferred that no such records had been disclosed, or the Plaintiff would not have needed to abandon his claims. As a result of this, Justice Antonio inferred that the claims were never capable of being supported to being with. Justice Antonio held that the abandonment if a “vacant” claim did not advance the Action.

The Plaintiff contended that the Consent Order to schedule a case conference constituted a significant advance in the Action. The Defendants asserted that, the mere agreement to participate in a Case Management Conference does not significantly advance the Action, rather it is the actual participation in the Conference which does. Justice Antonio held that entry into Case Management does not automatically constitute an advance in the Action, but rather only constitutes a different method of scheduling steps and does not relieve the Plaintiff of the obligation to move the action forward. Justice Antonio also held that the agreement to participate in a Case Management Conference did not constitute participation in the action for the purposes of the exception in Rule 4.33(2)(b), as the Defendants counsel had specifically noted that the Defendant was not waiving its ability to rely on the Rules by consenting to the Case Management Conference.

As Justice Antonio held that no significant advance had occurred in the over three year period, and granted the Appeal of the Master’s Decision, dismissing the Action pursuant to Rule 4.33.